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TMI Blog2018 (8) TMI 1395X X X X Extracts X X X X X X X X Extracts X X X X ..... the application having been filed within the date i.e. 30th September. The appellant has made it clear that he has submitted his application on 23.09.2009 which was received by the respondent-Commissioner of Central Excise on 30.09.2009. However, supporting documents could not be submitted in view of non-availability of the auditor due to his sickness. In absence of supporting documents, the application of the appellant was filed within time. Filing of supporting documents is simply a procedure therefore late filing of documents, will not destroy the right of the appellant. The matter is remitted back to the Commissioner of Central Excise, Shillong for deciding the original application of the appellant regarding the claim on its merits. - Central Excise Ap.No. 1 of 2017 - - - Dated:- 14-8-2018 - MR. MOHAMMAD YAQOOB MIR, AND MR. S.R. SEN, JJ. Appearance: For the Petitioner/Appellant(s) : Mr. N Dasgupta, Adv For the Respondent(s): Ms. SA Challam, Adv vice Mr. N Mozika, Adv ORAL Per Mohammad Yaqoob Mir,: 1. By medium of this appeal, the order dated 22.03.2017 passed by the Customs, Excise Service Tax Appellate Tribunal (CESTAT) Kolkatta, in Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n were exempted from payment of income tax and excise duty for a period of ten years. 6. Notification No.32/99-CE dated 08.07.1999, provides the exemption of payment of central excise in respect of the goods specified in the First Schedule and Second Schedule to the Central Excise Tariff Act, 1985 (for short the Act of 1985). The said Notification was subsequently amended on 27.03.2008 then again amended vide Notification dated 10.06.2008. 7. The Notification No.31/2008 in effect gave liberty to an industrial unit to apply to the Commissioner for determination of the actual value addition, if the manufacturer of such an industrial unit do not agree to the rate of excise duty exemption, which has been made available to the manufacturer, then Commissioner of Central Excise has the jurisdiction and power to determine the actual value addition in the production or manufacture of goods and then to refund the excise duty to the extent of value addition, as per the procedure laid down in para 2.1 of the Notification dated 27.03.2008 and Notification dated 10.06.2008. The determination of actual value by the Commissioner of Excise is termed as Special Rate . 8. The appellant ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner of Central Excise on 30.09.2009 and it is also admitted that the supporting documents were received on 13.01.2010, now the question is as to whether the application could be treated to have been filed beyond 30th day of September? The respondent-Commissioner of Central Excise has observed that though the application (letter) was received on 30.09.2009 but the supporting documents were received on 13.01.2010 therefore, complete application can be treated to have been filed on 13.01.2010. It is on such basis the application has been rejected same has been upheld by the First Appellate Tribunal (CESTAT). 14. Filling of the application up to 30th September in absence of supporting documents has to be treated as substantial compliance. 15. Keeping in view the benefit extended to the North Eastern Region, hyper technical approach shall not be in keeping with its object. The substantive condition is that the appellant must have filed application up to 30th September, which the appellant has. The Notification No.31/2008-CE dated 10.06.2008 only provide for filing of an application not later than 30th day of September. There is no condition that the supporting docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up to 30th September of the financial year. The filing of supporting documents subsequent thereto will not negate the competence of the application having been filed within the date i.e. 30th September. In this behalf, it shall be advantageous to quote the following portion of para 11 of the judgment rendered by the Hon ble Apex Court in Mangalore Chemicals Fertilizers Ltd. v. Deputy Commissioner: 1991 (55) E.L.T. 437 (S.C.) as under:- 11. We have given our careful consideration to these submissions. We are afraid the stand of the Revenue suffers from certain basic fallacies, besides being wholly technical. In Kedarnath s case, the question for consideration was whether the requirement of the declaration under the proviso to Sec. 5(2)(a)(ii) of the Bengal Finance (Sales-tax) Act, 1941, could be established by evidence aliunde. The court said that the intention of the Legislature was to grant exemption only upon the satisfaction of the substantive condition of the provision and the condition in the proviso was held to be of substance embodying considerations of policy. Shri Narasimhamurthy would say the position in the present case was no different. He says that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been followed sufficiently so as to carry out the intent for which the statute was enacted and not a mirror image type of strict compliance. Substantial compliance means actual compliance in respect to the substance essential to every reasonable objective of the statute and the court should determine whether the statute has been followed sufficiently so as to carry out the intent of the statute and accomplish the reasonable objectives for which it was passed. Fiscal statute generally seeks to preserve the need to comply strictly with regulatory requirements that are important, especially when a party seeks the benefits of an exemption clause that are important. Substantial compliance of an enactment is insisted, where mandatory and directory requirements are lumped together, for in such a case, if mandatory requirements are complied with, it will be proper to say that the enactment has been substantially complied with notwithstanding the non- compliance of directory requirements. In cases where substantial compliance has been found, there has been actual compliance with the statute, albeit procedurally faulty. The doctrine of substantial compliance seeks to preserve the need to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground alone . 19. The learned Tribunal has relied on its earlier order passed in the case of Nalari Ferro Alloys Pvt. Ltd. v. Commr. of Central Excise, Shillong - 2016 (337) ELT 113 (Tri-Kolkatta), but in the said case neither the application nor the supporting documents were filed within time. The copy of the judgment of the said case as placed on record clearly reveal that the required application for claiming the benefit was not filed by due date of 30.09.2009 or within condonable period of thirty days. In the case in hand, the application which was substantive condition was filed within due date of 30.09.2009. 20. For what has been stated hereinabove, the order passed by the Commissioner of Central Excise, Shillong dated 06.05.2010 and the order passed by the First Appellate Tribunal dated 22.03.2017 are not sustainable, are set aside. 21. The matter is remitted back to the Commissioner of Central Excise, Shillong for deciding the original application of the appellant regarding the claim on its merits. 22. The appeal succeeds as above. 23. Copy of this order be sent to the CESTAT, Kolkatta and Commissioner of Central Excise, Shillong for information. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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